Federal Detainees and the Constitutional Perils for Medical Care Providers

The problem of inadequate medical care at federal and state penitentiaries has been making the news on a regular basis in the last few years. Case in point: As we have seen in the news, the California prison system's medical care delivery mechanisms are currently being overseen by a receiver following a federal judge's ruling that the inadequate care prisoners were getting there amounted to a violation of their federal and state constitutional rights.

But lately, it is becoming increasingly clear that prisoners in our criminal justice systems are not the only ones at risk for receiving substandard medical care; similar problems are occurring in immigrant detention facilities.

Immigration detainees are housed in jails and prison facilities, generally in accordance with contracts between the federal government and private detention centers, or through intergovernmental agreements. Although there are rules that these facilities are supposed to follow to ensure immigrants are treated fairly and humanely, oversight by federal immigration authorities is reportedly sporadic. This fact has left some facilities free to provide inadequate medical care to some immigrant detainees, amounting at least to medical malpractice and at worst to systemic disregard of detainees' constitutional rights. Some recent, very sensational, cases are putting more focus on the problem, which immigrants' rights advocates say is widespread.

Implications for Medical Personnel

When immigration detainees or government-held prisoners of other kinds are provided with substandard medical care, the implications for medical personnel practicing within or for these systems are great. Although federal law may protect medical personnel working on the federal government's behalf from direct suit by such detainees for medical malpractice, claims against doctors and nurses for deprivation of constitutional rights may be permitted to go forward.

The basis for such claims is the Eighth Amendment to the Constitution, which prohibits the federal government from imposing cruel and unusual punishment. If a medical professional working on behalf of the federal government, or any other federal operative in control of the detainee, acts in a manner deliberately indifferent to that detainee's medical needs, a violation of the Eighth Amendment may be found. For a medical professional to be found liable for deliberate indifference to an inmate's medical needs, he must make a medical decision that represents 'such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.'” Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008) (quoting Collingnon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir. 1998).

Medical practitioners working with prisoners or other detainees of the federal government, as well as their legal advisers, should know what the dangers are so they can avoid such a fate. Two recent immigration cases illustrate the issue.

Francisco Castaneda's Cancer Nightmare

Francisco Castaneda was being held for suspected immigration law violations in the San Diego Correctional Facility. While there, he sought help from Immigration and Customs Enforcement's (ICE's) medical staff for a painful lesion on his penis. A physician's assistant there, Anthony Walker, saw Castaneda and recommended a urology consult and a biopsy.

On April 11, 2006, ICE documented that because of a family history of cancer, Castaneda needed to be checked for penile cancer. A Treatment Authorization Request (TAR) was filed with the Division of Immigration Health Services (DIHS), requesting approval for a biopsy and circumcision. The TAR noted that Castaneda's penile lesion had grown, that he was experiencing pain at a level 8 on a scale of 10, and that the lesion had a “foul odor.” DIHS had already determined that the lesion was not caused by an infection. The TAR urged immediate action. DIHS approved the TAR, authorizing the biopsy, urology consult, and any necessary follow-up.

On June 7, 2006, ICE sent Castaneda for a consult with an oncologist, Dr. John Wilkinson, who agreed with the previous health care providers that the patient might have cancer. Dr. Wilkinson wrote a note for the patient's medical records, which said, “I strongly agree that it requires urgent urologic assessment of biopsy and definitive treatment. In this extremely delicate area and [sic] there can be considerable morbidity from even benign lesions which are not promptly and appropriately treated ' I spoke with the physicians at the correctional facility. I have offered to admit patient for a urologic consultation and biopsy. Physicians there wish to pursue outpatient biopsy which would be more cost effective. They understand the need for urgent diagnosis and treatment.”

On the same day Dr. Wilkinson wrote that note, defendant Esther Hui, M.D., spoke to him about Castaneda's case. Although she was aware that Castaneda had a penile lesion that needed to be biopsied, and that Dr. Wilkinson had offered to admit Castaneda to perform this procedure, Dr. Hui determined that DIHS should not admit him to a hospital because DIHS considers a biopsy to be an elective outpatient procedure. Dr. Hui did not make any arrangements for a biopsy for Castaneda.

On June 12, 2006, Castaneda filed a grievance asking for the surgery recommended by Dr. Wilkinson, stating that he was “in a considerable amount of pain and I am in desperate need of medical attention.” DIHS denied the grievance. DIHS records from June 23 and June 30, 2006, indicated Castaneda's medical condition was worsening, but the June 30 record states that because Castaneda had not yet had “a biopsy performed and evaluated in a laboratory,” the agency considered him to “NOT have cancer at this time.” Despite the growing medical problems the patient was experiencing, a note in DIHS's records dismissed Castaneda's concerns, stating, “Basically, this pt needs to be patient and wait.”

Even a month later, as the patient's condition deteriorated, DHIS records claimed the cause of Castaneda's problem was simply “unknown.” He was taken to an Emergency Room at a nearby hospital, where doctors opined, without conducting a biopsy, that Castaneda had genital warts. Based on these diagnoses, apparently, DIHS took the stubborn position that Castaneda's requests for a biopsy should be denied, and that a circumcision ' being medically unnecessary ' was an elective procedure that the U.S. government should not pay for.

In August 2006, an outside oncologist recommended a biopsy. Physician's assistant Walker submitted the TAR request for such testing but used wording that indicated the oncologist's recommendation was for an “elective” procedure. The oncologist, however, never said the recommended biopsy was to be treated as “elective.” On Aug. 30, 2006, ICE sent Castaneda a letter: “This is to inform you that the off-site specialist you were referred to for your medical condition reports that any surgical intervention for the condition would be elective in nature. An independent review by our medical team is in agreement with the specialist's assessment. The care you are currently receiving is necessary, appropriate, and in accordance with our policies.”

Castaneda did not give up; he submitted another request for treatment in a TAR, but that request was denied on Oct. 26, 2006. In the October 26 denial report, defendant Claudia Mazur, a DIHS nurse, stated that “Pt has been seen by local urologist and oncologist and both are not impressed of possible cancerous lesion(s), however, there is an elective component to having the circumcision completed.” This TAR had documented that Castaneda “is not able to be released to seek further care due to mandatory hold and according to ICE authorities, may be with this facility for quite awhile.” This communication indicated that ICE officials knew that Castaneda would be unable to receive treatment of his own choosing in the foreseeable future.

The situation went on for two more months, during which period Castaneda was transferred to another detention facility, the San Pedro Service Processing Center. There he was seen by two more doctors, both of whom recommended he be tested for cancer. A biopsy was finally ordered and was to take place toward the end of January 2008. A few days before the scheduled biopsy, however, Castaneda was abruptly freed from detention.

Castaneda went to the ER of Harbor-UCLA Hospital in Los Angeles on Feb. 8, 2007, where he was diagnosed with squamous cell carcinoma. Although his penis was amputated within the week and he underwent chemotherapy, it was too late to save him. Castaneda died of cancer, on Feb. 16, 2008.

Castaneda brought suit against the United States and individual federal officials, including Dr. Hui and some others who allegedly kept him from getting the cancer screening that several health care providers had recommended he should have. He brought state tort claims against the United States under the Federal Torts Claims Act (FTCA), and alleged federal constitutional violations against the individual defendants pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Bivens stands for the proposition that victims of constitutional violations by federal agents may recover damages against such officials in their individual capacities in federal court.

The defendants moved to dismiss for lack of subject matter jurisdiction, claiming they were absolutely immune from suit because, pursuant to the FTCA, individuals whose negligent acts do harm to others while they perform duties as employees of the United States are immune from suit. They asserted, therefore, that the United States should be substituted as defendant and they should be dismissed from the suit. On top of that, they argued, because the United States has not waived sovereign immunity for claims of constitutional violations, the entire action should be dismissed.

The Ruling

The U.S. District Court in Castaneda v. U.S., 538 F.Supp.2d 1279 (C.D.Cal.,2008), was therefore faced with what it described as “an unresolved legal question in the Ninth Circuit: whether ' 233(a) of the Public Health Service Act allowed Castaneda to assert Bivens claims against the individual Public Health Service Defendants.” The court determined that Bivens claims were generally available to remedy Eighth Amendment violations, and the FTCA is intended as a parallel, rather than a substitute remedy.

Looking to the claim at hand, the court stated, “Plaintiff has [] submitted compelling evidence that Defendants purposefully mischaracterized plaintiff's medical conditions as elective in order to refuse him care. Dr. Wilkinson reported that defendants refused to admit Castaneda to the hospital for a biopsy because they wanted a 'more cost-effective' treatment ' Official records document defendants' circular logic that because they would not allow him to have the biopsy, 'he DOES NOT have cancer at this time'; because he does not have cancer, he therefore does not need a biopsy ' In other words, as long as they could label Castaneda's condition elective, defendants could remain willfully blind about his lesion and avoid having to pay for its treatment. If plaintiff's evidence holds up, the conduct that he has established on the part of defendants is beyond cruel and unusual.”

Based on this logic, the court refused to dismiss the constitutional claims against the medical personnel.

Hiu Lui Ng and the Undiagnosed Cancer

In the first week of August of this year a man died while in custody of immigration authorities after having spent months in detention pending disposition of his case.

Hiu Lui Ng had come to the United States at the age of 17, on a tourist visa. When that visa ran out he applied for political asylum. Ng was given a work permit while his case was pending. The petition was ultimately denied, but the government did not move to deport Ng. Then, in 2001, the authorities sent a notice ordering Ng to appear for a hearing. It was, however, sent to the wrong address. Because he did not receive the notice, Ng did not appear for the hearing, and the judge ordered him deported.

During the passage of time from his entrance to the country until this unattended hearing, Ng had graduated from an American high school, gone on to community college and received training through a Microsoft program. With this training behind him, he got a job working with computers for a company located in the Empire State Building. Ng had also gotten married, and he and his wife now had two American-born children. Ng was in the process of obtaining legal immigrant status through his wife. In conjunction with that immigration petition, Ng presented himself to the authorities in July 2007 for a green card interview. There, he was detained on the old deportation order.

Ng was held in three separate jail facilities, all of which had contracts with the immigration authorities to house detainees. Apart from the indignity and inconvenience of being locked up, nothing went terribly amis until April 2008, when Ng began feeling unwell. He complained of severe back pain and itchy skin. Because of his medical complaints and the fact that he could not receive adequate medical care where he was being held, Ng was transferred on July 3, 2008, to a facility in Rhode Island, the Donald W. Wyatt Detention Facility.

The level of medical care provided at Wyatt was also horribly inadequate, according to court filings made by Ng's attorneys. For example, he was not properly evaluated for the underlying causes of his severe back pain, weight loss and other medical problems. He was merely prescribed painkillers and muscle relaxants. His requests for examination by an outside doctor were denied.

After a short time, Ng became so incapacitated that he could not walk to the place in the facility where medication was dispensed, and his requests for a wheelchair were denied. Thus, he could no longer even get the palliative medical aid offered by the drugs he'd been prescribed. Ng's protestations that he was ill and needed help were largely rebuffed, according to his attorneys, as whining and fakery.

On July 26 Ng was taken to a hospital for an MRI scan, but was told, once he'd arrived, that such tests could not be done on Saturdays. He was rescheduled for an MRI the following Monday, but was not transported there on that day. On the morning of July 29, Ng was supposed to have been taken to a hospital once more for an MRI, but his custodians allegedly refused to give him the wheelchair he needed so that he could be transported there. Therefore, he missed that appointment as well.

On July 29, 2008, Ng's attorney filed a petition for a writ of habeas corpus in federal court. In the two days between that filing and the hearing on the matter, various employees of Immigration and Customs Enforcement allegedly manhandled Ng and forced him to go with them to their offices in Connecticut, causing him immense pain. They also allegedly filmed parts of these proceedings, perhaps intending to use the film as proof that Ng could walk, was not really in pain or was receiving adequate medical care.

A hearing on the petition was held July 31, and the District Court judge ordered medical treatment for Ng. When tests were actually performed, they uncovered the facts that Ng had cancer extensively throughout his body, as well as a broken spine. Ng died just days after that examination, still in custody.

Ng's attorneys have requested internal investigations by the attorneys general of Massachusetts and Vermont, where two of Ng's detention facilities were located, and by the administration of the Wyatt detention facility in Rhode Island. This move would appear to be a precursor to the filing of a lawsuit.

Conclusion

When one looks through the written dispositions of the bulk of published lawsuits claiming that the medical care prisoners in penitentiaries receive violates their constitutional rights, it seems most judges have been unsympathetic. That may be changing, as charges that substandard medical care is the norm in many detention facilities in the United States ' both for criminals and for immigrants in detention ' are proven to be more than just whining from detainees who would rather not be behind bars.

Like prisoners in federal criminal detention centers, immigrants in federal custody are unable to obtain medical care beyond what their keepers will permit. They are therefore at the mercy of their custodians and, like prisoners in the criminal justice system, they may be able to successfully sue those in charge who have had a hand in denying them their constitutional rights. It should also be noted that, unlike an FTCA claim, a claim for deprivation of constitutional rights made against an individual defendant in accordance with Bivens could lead to an award of punitive damages.

Doctors, nurses and others who attempt to help a detained patient but are thwarted by other immigration department employees' missteps may be safe from liability, but those who are complicit in denying detainees the medical care they need may discover they have an additional legal problem to fear beyond a suit for medical malpractice, which normally becomes an FTCA claim with the United States substituted as defendant. They may find themselves sued for violating the constitutional rights of an immigrant in detention, or a prisoner in a penitentiary.

Janice G. Inman is Editor-in-Chief of this newsletter.

The problem of inadequate medical care at federal and state penitentiaries has been making the news on a regular basis in the last few years. Case in point: As we have seen in the news, the California prison system's medical care delivery mechanisms are currently being overseen by a receiver following a federal judge's ruling that the inadequate care prisoners were getting there amounted to a violation of their federal and state constitutional rights.

But lately, it is becoming increasingly clear that prisoners in our criminal justice systems are not the only ones at risk for receiving substandard medical care; similar problems are occurring in immigrant detention facilities.

Immigration detainees are housed in jails and prison facilities, generally in accordance with contracts between the federal government and private detention centers, or through intergovernmental agreements. Although there are rules that these facilities are supposed to follow to ensure immigrants are treated fairly and humanely, oversight by federal immigration authorities is reportedly sporadic. This fact has left some facilities free to provide inadequate medical care to some immigrant detainees, amounting at least to medical malpractice and at worst to systemic disregard of detainees' constitutional rights. Some recent, very sensational, cases are putting more focus on the problem, which immigrants' rights advocates say is widespread.

Implications for Medical Personnel

When immigration detainees or government-held prisoners of other kinds are provided with substandard medical care, the implications for medical personnel practicing within or for these systems are great. Although federal law may protect medical personnel working on the federal government's behalf from direct suit by such detainees for medical malpractice, claims against doctors and nurses for deprivation of constitutional rights may be permitted to go forward.

The basis for such claims is the Eighth Amendment to the Constitution, which prohibits the federal government from imposing cruel and unusual punishment. If a medical professional working on behalf of the federal government, or any other federal operative in control of the detainee, acts in a manner deliberately indifferent to that detainee's medical needs, a violation of the Eighth Amendment may be found. For a medical professional to be found liable for deliberate indifference to an inmate's medical needs, he must make a medical decision that represents 'such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.'” Sain v. Wood , 512 F.3d 886, 895 (7th Cir. 2008) (quoting Collingnon v. Milwaukee County , 163 F.3d 982, 988 (7th Cir. 1998).

Medical practitioners working with prisoners or other detainees of the federal government, as well as their legal advisers, should know what the dangers are so they can avoid such a fate. Two recent immigration cases illustrate the issue.

Francisco Castaneda's Cancer Nightmare

Francisco Castaneda was being held for suspected immigration law violations in the San Diego Correctional Facility. While there, he sought help from Immigration and Customs Enforcement's (ICE's) medical staff for a painful lesion on his penis. A physician's assistant there, Anthony Walker, saw Castaneda and recommended a urology consult and a biopsy.

On April 11, 2006, ICE documented that because of a family history of cancer, Castaneda needed to be checked for penile cancer. A Treatment Authorization Request (TAR) was filed with the Division of Immigration Health Services (DIHS), requesting approval for a biopsy and circumcision. The TAR noted that Castaneda's penile lesion had grown, that he was experiencing pain at a level 8 on a scale of 10, and that the lesion had a “foul odor.” DIHS had already determined that the lesion was not caused by an infection. The TAR urged immediate action. DIHS approved the TAR, authorizing the biopsy, urology consult, and any necessary follow-up.

On June 7, 2006, ICE sent Castaneda for a consult with an oncologist, Dr. John Wilkinson, who agreed with the previous health care providers that the patient might have cancer. Dr. Wilkinson wrote a note for the patient's medical records, which said, “I strongly agree that it requires urgent urologic assessment of biopsy and definitive treatment. In this extremely delicate area and [sic] there can be considerable morbidity from even benign lesions which are not promptly and appropriately treated ' I spoke with the physicians at the correctional facility. I have offered to admit patient for a urologic consultation and biopsy. Physicians there wish to pursue outpatient biopsy which would be more cost effective. They understand the need for urgent diagnosis and treatment.”

On the same day Dr. Wilkinson wrote that note, defendant Esther Hui, M.D., spoke to him about Castaneda's case. Although she was aware that Castaneda had a penile lesion that needed to be biopsied, and that Dr. Wilkinson had offered to admit Castaneda to perform this procedure, Dr. Hui determined that DIHS should not admit him to a hospital because DIHS considers a biopsy to be an elective outpatient procedure. Dr. Hui did not make any arrangements for a biopsy for Castaneda.

On June 12, 2006, Castaneda filed a grievance asking for the surgery recommended by Dr. Wilkinson, stating that he was “in a considerable amount of pain and I am in desperate need of medical attention.” DIHS denied the grievance. DIHS records from June 23 and June 30, 2006, indicated Castaneda's medical condition was worsening, but the June 30 record states that because Castaneda had not yet had “a biopsy performed and evaluated in a laboratory,” the agency considered him to “NOT have cancer at this time.” Despite the growing medical problems the patient was experiencing, a note in DIHS's records dismissed Castaneda's concerns, stating, “Basically, this pt needs to be patient and wait.”

Even a month later, as the patient's condition deteriorated, DHIS records claimed the cause of Castaneda's problem was simply “unknown.” He was taken to an Emergency Room at a nearby hospital, where doctors opined, without conducting a biopsy, that Castaneda had genital warts. Based on these diagnoses, apparently, DIHS took the stubborn position that Castaneda's requests for a biopsy should be denied, and that a circumcision ' being medically unnecessary ' was an elective procedure that the U.S. government should not pay for.

In August 2006, an outside oncologist recommended a biopsy. Physician's assistant Walker submitted the TAR request for such testing but used wording that indicated the oncologist's recommendation was for an “elective” procedure. The oncologist, however, never said the recommended biopsy was to be treated as “elective.” On Aug. 30, 2006, ICE sent Castaneda a letter: “This is to inform you that the off-site specialist you were referred to for your medical condition reports that any surgical intervention for the condition would be elective in nature. An independent review by our medical team is in agreement with the specialist's assessment. The care you are currently receiving is necessary, appropriate, and in accordance with our policies.”

Castaneda did not give up; he submitted another request for treatment in a TAR, but that request was denied on Oct. 26, 2006. In the October 26 denial report, defendant Claudia Mazur, a DIHS nurse, stated that “Pt has been seen by local urologist and oncologist and both are not impressed of possible cancerous lesion(s), however, there is an elective component to having the circumcision completed.” This TAR had documented that Castaneda “is not able to be released to seek further care due to mandatory hold and according to ICE authorities, may be with this facility for quite awhile.” This communication indicated that ICE officials knew that Castaneda would be unable to receive treatment of his own choosing in the foreseeable future.

The situation went on for two more months, during which period Castaneda was transferred to another detention facility, the San Pedro Service Processing Center. There he was seen by two more doctors, both of whom recommended he be tested for cancer. A biopsy was finally ordered and was to take place toward the end of January 2008. A few days before the scheduled biopsy, however, Castaneda was abruptly freed from detention.

Castaneda went to the ER of Harbor-UCLA Hospital in Los Angeles on Feb. 8, 2007, where he was diagnosed with squamous cell carcinoma. Although his penis was amputated within the week and he underwent chemotherapy, it was too late to save him. Castaneda died of cancer, on Feb. 16, 2008.

Castaneda brought suit against the United States and individual federal officials, including Dr. Hui and some others who allegedly kept him from getting the cancer screening that several health care providers had recommended he should have. He brought state tort claims against the United States under the Federal Torts Claims Act (FTCA), and alleged federal constitutional violations against the individual defendants pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). Bivens stands for the proposition that victims of constitutional violations by federal agents may recover damages against such officials in their individual capacities in federal court.

The defendants moved to dismiss for lack of subject matter jurisdiction, claiming they were absolutely immune from suit because, pursuant to the FTCA, individuals whose negligent acts do harm to others while they perform duties as employees of the United States are immune from suit. They asserted, therefore, that the United States should be substituted as defendant and they should be dismissed from the suit. On top of that, they argued, because the United States has not waived sovereign immunity for claims of constitutional violations, the entire action should be dismissed.

The Ruling

The U.S. District Court in Castaneda v. U.S. , 538 F.Supp.2d 1279 (C.D.Cal.,2008), was therefore faced with what it described as “an unresolved legal question in the Ninth Circuit: whether ' 233(a) of the Public Health Service Act allowed Castaneda to assert Bivens claims against the individual Public Health Service Defendants.” The court determined that Bivens claims were generally available to remedy Eighth Amendment violations, and the FTCA is intended as a parallel, rather than a substitute remedy.

Looking to the claim at hand, the court stated, “Plaintiff has [] submitted compelling evidence that Defendants purposefully mischaracterized plaintiff's medical conditions as elective in order to refuse him care. Dr. Wilkinson reported that defendants refused to admit Castaneda to the hospital for a biopsy because they wanted a 'more cost-effective' treatment ' Official records document defendants' circular logic that because they would not allow him to have the biopsy, 'he DOES NOT have cancer at this time'; because he does not have cancer, he therefore does not need a biopsy ' In other words, as long as they could label Castaneda's condition elective, defendants could remain willfully blind about his lesion and avoid having to pay for its treatment. If plaintiff's evidence holds up, the conduct that he has established on the part of defendants is beyond cruel and unusual.”

Based on this logic, the court refused to dismiss the constitutional claims against the medical personnel.

Hiu Lui Ng and the Undiagnosed Cancer

In the first week of August of this year a man died while in custody of immigration authorities after having spent months in detention pending disposition of his case.

Hiu Lui Ng had come to the United States at the age of 17, on a tourist visa. When that visa ran out he applied for political asylum. Ng was given a work permit while his case was pending. The petition was ultimately denied, but the government did not move to deport Ng. Then, in 2001, the authorities sent a notice ordering Ng to appear for a hearing. It was, however, sent to the wrong address. Because he did not receive the notice, Ng did not appear for the hearing, and the judge ordered him deported.

During the passage of time from his entrance to the country until this unattended hearing, Ng had graduated from an American high school, gone on to community college and received training through a Microsoft program. With this training behind him, he got a job working with computers for a company located in the Empire State Building. Ng had also gotten married, and he and his wife now had two American-born children. Ng was in the process of obtaining legal immigrant status through his wife. In conjunction with that immigration petition, Ng presented himself to the authorities in July 2007 for a green card interview. There, he was detained on the old deportation order.

Ng was held in three separate jail facilities, all of which had contracts with the immigration authorities to house detainees. Apart from the indignity and inconvenience of being locked up, nothing went terribly amis until April 2008, when Ng began feeling unwell. He complained of severe back pain and itchy skin. Because of his medical complaints and the fact that he could not receive adequate medical care where he was being held, Ng was transferred on July 3, 2008, to a facility in Rhode Island, the Donald W. Wyatt Detention Facility.

The level of medical care provided at Wyatt was also horribly inadequate, according to court filings made by Ng's attorneys. For example, he was not properly evaluated for the underlying causes of his severe back pain, weight loss and other medical problems. He was merely prescribed painkillers and muscle relaxants. His requests for examination by an outside doctor were denied.

After a short time, Ng became so incapacitated that he could not walk to the place in the facility where medication was dispensed, and his requests for a wheelchair were denied. Thus, he could no longer even get the palliative medical aid offered by the drugs he'd been prescribed. Ng's protestations that he was ill and needed help were largely rebuffed, according to his attorneys, as whining and fakery.

On July 26 Ng was taken to a hospital for an MRI scan, but was told, once he'd arrived, that such tests could not be done on Saturdays. He was rescheduled for an MRI the following Monday, but was not transported there on that day. On the morning of July 29, Ng was supposed to have been taken to a hospital once more for an MRI, but his custodians allegedly refused to give him the wheelchair he needed so that he could be transported there. Therefore, he missed that appointment as well.

On July 29, 2008, Ng's attorney filed a petition for a writ of habeas corpus in federal court. In the two days between that filing and the hearing on the matter, various employees of Immigration and Customs Enforcement allegedly manhandled Ng and forced him to go with them to their offices in Connecticut, causing him immense pain. They also allegedly filmed parts of these proceedings, perhaps intending to use the film as proof that Ng could walk, was not really in pain or was receiving adequate medical care.

A hearing on the petition was held July 31, and the District Court judge ordered medical treatment for Ng. When tests were actually performed, they uncovered the facts that Ng had cancer extensively throughout his body, as well as a broken spine. Ng died just days after that examination, still in custody.

Ng's attorneys have requested internal investigations by the attorneys general of Massachusetts and Vermont, where two of Ng's detention facilities were located, and by the administration of the Wyatt detention facility in Rhode Island. This move would appear to be a precursor to the filing of a lawsuit.

Conclusion

When one looks through the written dispositions of the bulk of published lawsuits claiming that the medical care prisoners in penitentiaries receive violates their constitutional rights, it seems most judges have been unsympathetic. That may be changing, as charges that substandard medical care is the norm in many detention facilities in the United States ' both for criminals and for immigrants in detention ' are proven to be more than just whining from detainees who would rather not be behind bars.

Like prisoners in federal criminal detention centers, immigrants in federal custody are unable to obtain medical care beyond what their keepers will permit. They are therefore at the mercy of their custodians and, like prisoners in the criminal justice system, they may be able to successfully sue those in charge who have had a hand in denying them their constitutional rights. It should also be noted that, unlike an FTCA claim, a claim for deprivation of constitutional rights made against an individual defendant in accordance with Bivens could lead to an award of punitive damages.

Doctors, nurses and others who attempt to help a detained patient but are thwarted by other immigration department employees' missteps may be safe from liability, but those who are complicit in denying detainees the medical care they need may discover they have an additional legal problem to fear beyond a suit for medical malpractice, which normally becomes an FTCA claim with the United States substituted as defendant. They may find themselves sued for violating the constitutional rights of an immigrant in detention, or a prisoner in a penitentiary.

Janice G. Inman is Editor-in-Chief of this newsletter.